Fuller v. Rhododendron Corp., 207 N.C. 660 (1935)

Jan. 28, 1935 · Supreme Court of North Carolina
207 N.C. 660


(Filed 28 January, 1935.)

Wills E d — Remainder held to vest at termination of life estate and not upon death of testator.

A devise to testator’s wife for life, the property then to be sold and divided equally among testator’s children by his first wife, “and if none alive, to my first wife’s grandchildren,” is held to vest the remainder after the life estate in the sole survivor of testator’s children by his first wife as of the date of the death of his widow, unaffected by the direction to sell the land and divide the proceeds.

Appeal by defendant from Warlick, J., at November Term, 1934, of HENDERSON.

Civil action for specific performance.

Plaintiff being under contract to convey a certain tract of land on Mount Hebron, Henderson County, to the defendant, duly executed warranty deed therefor, tendered same to the defendant, and demanded payment of the purchase price as agreed. The defendant refused to accept said deed and declined to pay the purchase price on the ground that the title offered is defective.

The case was heard upon the pleadings and facts agreed.

There was judgment for the plaintiff, from which the defendant appeals, assigning error.

Shipman & Arledge for plaintiff.

Thomas 11. Franks for defendant.

*661Stacy, C. J.

On tbe bearing tbe title offered was properly made to depend upon tbe construction of tbe following item in tbe will of Solomon Jones:

“I give, devise, and bequeath my estate and property, real and personal, as follows, tbat is to say:

“My real and personal estate on ‘Mt. Hebron,’ in Henderson County, North Carolina, to go to my wife, Assena T. Jones, during her mortal life, then to be sold and divided equally among my first wife’s children, and if none alive, to my first wife’s grandchildren.”

Tbe case states tbat Jane Cox was tbe only child of tbe testator’s first wife to survive bis widow, Assena T. Jones. Tbe plaintiff has acquired, by mesne conveyances, all of Jane Cox’s interest in said land.

On authority of Brown v. Guthery, 190 N. C., 822, tbe trial court held tbat, under tbe will of Solomon Jones, bis widow, Assena T. Jones, took a life estate in said land, with remainder in fee to tbe children of tbe testator’s first wife who should survive bis widow, and tbat as Jane Cox alone of bis first wife’s children survived bis widow, she was entitled to tbe remainder in fee. This ruling would seem to be correct. Watson v. Smith, 110 N. C., 6, 14 S. E., 640.

Nor is plaintiff’s title affected by tbe testator’s direction to sell tbe land and divide tbe proceeds. Witty v. Witty, 184 N. C., 375, 114 S. E., 482; 40 Cyc., 1999.